United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 23, 2003
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
_____________________
No. 01-40447
_____________________
KELSEY PATTERSON, Petitioner-Appellant,
versus
JANIE COCKRELL, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION, Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
(4:98-CV-156)
_________________________________________________________________
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:*
Kelsey Patterson was convicted in the Texas courts of capital
murder and sentenced to death, notwithstanding his claims of mental
illness and incompetence. The district court denied federal habeas
relief, but granted a certificate of appealability (“COA”) for
Patterson’s claims that he was incompetent to stand trial and that
he received ineffective assistance of counsel at trial. Patterson
appeals the denial of habeas relief as to those two claims and, in
addition, he seeks a COA from our court for his claims that he
received ineffective assistance of counsel at the competency trial,
that he is presently incompetent to be executed, and that the state
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
trial court should have conducted a mid-trial competency hearing.
We AFFIRM the denial of habeas relief on Patterson’s claims that he
was incompetent to stand trial and that he received ineffective
assistance of counsel at the guilt-innocence and punishment phases
of trial; DENY a COA for Patterson’s claims that counsel rendered
ineffective assistance at the competency trial and that the trial
court denied him due process by failing to conduct a mid-trial
competency hearing; and GRANT a COA for Patterson’s claim that he
is presently incompetent to be executed, but DISMISS that claim,
without prejudice to his raising it again when his execution is
imminent and the claim thus becomes ripe.
I
Patterson has a long history of mental illness (paranoid
schizophrenia). The murders for which Patterson was convicted and
sentenced to death were preceded by earlier, non-fatal shootings.
With no apparent rational motive, Patterson shot a co-worker in
1980 and was found incompetent to stand trial. Although his
competency was restored after hospitalization and forcible
medication, the charges were dismissed because he was insane at the
time of the offense. In 1983, Patterson shot another co-worker,
again with no apparent rational motive. Again, he was found
incompetent to stand trial; his competency was restored after
hospitalization and forcible medication; and the charges were
dismissed because he was insane at the time of the offense. He was
2
admitted to a state mental hospital again in 1988 after threatening
his family, but was released after being forcibly medicated.
In September 1992, Patterson shot and killed Louis Oates and
Dorothy Harris. Consistent with his prior assaultive behavior,
there was no apparent rational motive for the murders. After
shooting the victims, Patterson walked back to his roommate’s
house, put the gun on the porch, told his roommate that he had just
shot two people, and then removed all of his clothing and walked up
and down the street in front of the house until he was arrested.
He was charged with capital murder.
The trial court authorized funds for a defense psychiatric
expert to examine Patterson for competency to stand trial and
sanity at the time of the murders. After examining Patterson, Dr.
McNeel, the defense expert, concluded that he was competent to
stand trial and that he was sane when he committed the murders.
At the jury trial on competency in early May 1993, the State
had the burden of proving competency because Patterson previously
had been adjudged incompetent to stand trial. Against counsel’s
advice, Patterson testified, complaining about his court-appointed
attorneys, implanted devices, the criminal justice system, and his
treatment in jail. He refused to submit to cross-examination,
invoking his Fifth Amendment privilege against self-incrimination.
The trial court granted the State’s motion to strike Patterson’s
testimony and instructed the competency jury to disregard it. The
jury found Patterson competent to stand trial.
3
Voir dire for the trial on the merits commenced approximately
six weeks later. Throughout voir dire and the guilt-innocence
phase of trial, the trial court frequently had Patterson removed
from the courtroom because of his disruptive outbursts. During
voir dire, Patterson continually complained that his court-
appointed counsel did not represent him. At one point, he stated
that they specialized in being “set-up” lawyers and that he had
heard them make a deal where they had a remote control device “put
in” him. Against the advice of counsel, Patterson testified at the
guilt-innocence phase. After answering questions about his name
and address, Patterson began ranting about his lawyers and the
police and complaining about implanted electronic remote control
devices, frequently telling his lawyer to “be quiet.” He referred
to “these charges on me that was did with some electrical devices.”
When the prosecutor attempted to cross-examine him, he continued to
talk about implanted devices that controlled his actions and again
pleaded the Fifth Amendment. On July 1, 1993, the jury convicted
him of capital murder, rejecting his insanity defense.
Patterson was present at the start of the punishment phase,
but was removed from the courtroom because of his disruptive
behavior and was not present for any of the testimony. The jury
answered the future dangerousness special issue affirmatively and
answered the mitigation special issue negatively. Patterson was
sentenced to death.
4
Patterson filed an application for state habeas relief in May
1997. The state trial court conducted an evidentiary hearing on
Patterson’s incompetency to stand trial and ineffective assistance
of counsel claims. In March 1998, the state habeas trial court
entered findings of fact and conclusions of law, recommending that
relief be denied. The Texas Court of Criminal Appeals denied
relief in May 1998, based on the trial court’s findings.
Patterson filed a federal habeas petition in August 1998. The
district court stayed Patterson’s execution, which had been
scheduled for August 31, 1998, during the pendency of the federal
habeas proceedings. After conducting evidentiary hearings in May
and August 1999 on Patterson’s claim that he is presently
incompetent to be executed, the magistrate judge recommended that
relief be denied. The district court adopted the magistrate
judge’s recommendation and denied federal habeas relief on January
30, 2001.
The district court granted a COA for Patterson’s claims that
(1) he was incompetent to stand trial; and (2) counsel rendered
ineffective assistance at the guilt-innocence and punishment
phases. Patterson seeks a COA from our court for his claims that:
(1) he is presently incompetent to be executed; and (2) the trial
court denied him due process by failing to conduct a mid-trial
competency hearing. Patterson also argues that he received
ineffective assistance of counsel at the competency trial. The
district court’s COA, however, is limited to Patterson’s claims of
5
ineffective assistance of counsel at the guilt-innocence and
punishment phases of trial. We therefore construe Patterson’s
argument that his counsel rendered ineffective assistance at the
competency trial as a request for a COA. See Hill v. Johnson, 114
F.3d 78, 81 (5th Cir. 1997) (construing notice of appeal and
request for certificate of probable cause as a request for COA);
FED. R. APP. P. 22(b) (“If no express request for a [COA] is filed,
the notice of appeal constitutes a request addressed to the judges
of the court of appeals.”).
II
We address first the claims for which the district court
granted a COA. We then turn to the claims for which Patterson
requests a COA from our court.
A
Merits Issues
As we have said, the district court granted a COA for
Patterson’s claims that he was incompetent to stand trial and that
he received ineffective assistance of counsel at the guilt and
punishment phases of trial. Because Patterson filed his federal
habeas petition after the effective date of the Anti-terrorism and
Effective Death Penalty Act (AEDPA), he is not entitled to federal
habeas relief on these claims unless the state court’s adjudication
of the claims
(1) resulted in a decision that was
contrary to, or involved an unreasonable
application of, clearly established Federal
6
law, as determined by the Supreme Court of the
United States; or
(2) resulted in a decision that was based
on an unreasonable determination of the facts
in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d). A decision is “contrary to ... clearly
established Federal law, as determined by the Supreme Court of the
United States ... if the state court arrives at a conclusion
opposite to that reached by th[e] Court on a question of law or if
the state court decides a case differently than th[e] Court has on
a set of materially indistinguishable facts.” Williams v. Taylor,
529 U.S. 362, 412-13 (2000). A decision “involve[s] an
unreasonable application of [] clearly established Federal law, as
determined by the Supreme Court of the United States ... if the
state court identifies the correct governing legal principle from
th[e] Court’s decisions but unreasonably applies that principle to
the facts of the prisoner’s case.” Id. at 413. A state court’s
findings of fact are presumed to be correct unless the petitioner
rebuts the presumption by “clear and convincing evidence.” 28
U.S.C. § 2254(e)(1).
1
Competency to Stand Trial
We address first Patterson’s claim that he was incompetent to
stand trial. Patterson argues that the district court erred by
limiting its review to the reasonableness of the determination of
the jury at the competency hearing for two reasons: first, because
7
the issue was subsequently presented de novo in the state habeas
court, with additional evidence relevant to the determination; and,
second, it is unclear whether the state habeas court resolved the
issue, because it drew no conclusion other than that “Petitioner is
competent.” Alternatively, assuming that the state habeas court’s
determination that he “is competent” was a conclusion that he was
competent to stand trial in 1993, Patterson argues that the
district court erred by treating competency as a question of fact.
Patterson maintains that, although the threshold question whether
the defendant suffers from a mental illness is a fact issue, the
ultimate question of incompetency to stand trial is a mixed
question of law and fact. He therefore argues that the district
court should have determined whether the state court’s conclusion
that he “is competent” was an unreasonable application of the law
to the facts. In the further alternative, Patterson argues that,
if competency is an issue of fact, he presented clear and
convincing evidence of his incompetency at the state habeas
hearing. Therefore, any factual finding of the state habeas court
that he was competent to stand trial in 1993 is an unreasonable
determination of the facts.
It is well-settled that the criminal trial of an accused who
is legally incompetent violates due process. Bishop v. United
States, 350 U.S. 901 (1956); Pate v. Robinson, 383 U.S. 375, 378
(1966); Cooper v. Oklahoma, 517 U.S. 348, 353 (1996). An accused
is competent to stand trial if he “has sufficient present ability
8
to consult with his lawyer with a reasonable degree of rational
understanding[;] and . . . has a rational as well as factual
understanding of the proceedings.” Dusky v. United States, 362
U.S. 402, 403 (1960).
Our precedent is conflicting as to whether competency to stand
trial is a question of fact or a mixed question of law and fact.
Compare Bouchillon v. Collins, 907 F.2d 589, 593 n.11 (5th Cir.
1990) (mixed question) and Washington v. Johnson, 90 F.3d 945, 951
(5th Cir. 1996) (same) with Profitt v. Waldron, 831 F.2d 1245, 1250
(5th Cir. 1987) (jury finding of competency to stand trial is
factual finding entitled to presumption of correctness); Carter v.
Johnson, 131 F.3d 452, 460 (5th Cir. 1997) (same); see also Miller-
El v. Johnson, 261 F.3d 445, 454 (5th Cir. 2001) (applying AEDPA’s
“unreasonable application” standard to state court competency
determination, but also stating that “[a] state court’s competency
determination is a finding of fact entitled to a presumption of
correctness”), rev’d on other grounds, 123 S.Ct. 1029 (2003). The
Supreme Court, however, has treated competency to stand trial as a
question of fact. See Maggio v. Fulford, 462 U.S. 111, 117 (1983).
We need not resolve this conflict in our caselaw. Based on our
review of the evidence presented at the competency trial and the
state habeas hearing, described below, we conclude that the state
court’s adjudication of this claim did not result in a decision
that was contrary to, or involved an unreasonable application of,
9
clearly established federal law, and did not result in a decision
that was based on an unreasonable determination of the facts.
Prior to the competency trial, the defense psychiatric expert,
Dr. McNeel, examined Patterson and found him competent to stand
trial. Dr. Cox, a psychologist who consulted with defense counsel,
agreed with Dr. McNeel that Patterson was competent to stand trial.
Neither doctor testified at the competency trial.
Patterson refused to cooperate in an evaluation by Dr.
Quijano, the State’s expert psychologist. Dr. Quijano testified at
the competency trial that, based on his review of Patterson’s
records, Patterson suffered from paranoid schizophrenia, but he was
competent to stand trial.
Several jailers had come into contact with Patterson during
the seven months that he was in jail awaiting trial. They
testified that Patterson was able to keep his cell clean, take care
of his personal hygiene, and communicate his needs. One jailer
testified that Patterson was able to follow jail rules and
regulations and that he believed that Patterson could talk sensibly
to his attorneys. The chief jailer testified that, although
Patterson had indicated that he was unhappy with his attorneys,
Patterson had the ability to communicate with his attorneys if he
chose to do so. He further testified, however, that Patterson
believed that his food was being drugged and that the jailers had
come into his cell at night and injected something into his body.
10
The State’s expert psychiatrist, Dr. Grigson, had found
Patterson incompetent to stand trial in 1980. He acknowledged that
he had not interviewed Patterson since 1981 but, based on his
review of Patterson’s records and observation of Patterson in the
courtroom, he testified that Patterson was competent to stand
trial. According to Dr. Grigson, Patterson had learned to
manipulate the criminal justice system and was faking psychosis.
As we have noted earlier, Patterson testified at the
competency trial, against the advice of his counsel. On direct
examination, he complained about his attorneys, conditions in the
jail, and a device that had been implanted in his body to control
his behavior. He refused to submit to cross-examination by the
State, asserting his Fifth Amendment privilege against self-
incrimination. The trial court granted the State’s motion to
strike Patterson’s testimony and instructed the competency jury to
disregard it.
Although one of Patterson’s attorneys had testified at a
pretrial hearing that Patterson was not capable of consulting with
counsel with a reasonable degree of rational understanding, neither
of Patterson’s attorneys testified at the competency trial.
At the state habeas evidentiary hearing, some of the testimony
was slanted differently. Dr. Quijano admitted that when he found
Patterson competent to stand trial, he had been operating under the
faulty assumption that he should presume Patterson competent until
it could be positively demonstrated that he was not, and that he
11
had not then found any such positive demonstration. Now, however,
his review of the transcript of Patterson’s outbursts during jury
selection and trial raised sufficient doubt in his mind about the
correctness of his earlier conclusion that, in hindsight, he would
have recommended that the competency issue be revisited. Dr.
Quijano conceded that Dr. McNeel, who had examined Patterson, would
have been in a better position to make a competency determination.
Further, at the state habeas hearing, Patterson’s expert, Dr.
Childs, testified that Patterson was incompetent to stand trial and
that he was not faking mental illness. Dr. Childs, however, was
unable to examine Patterson because Patterson refused to cooperate.
Dr. Childs’s conclusion was based on his review of trial
transcripts, medical records, and interviews. He deduced from this
information the basis to describe a fixed delusional system in
which Patterson believed that he was tried for capital murder
because of a hell pledge placed on him by an unknown person; that
the trial judge, prosecutors, and his counsel are all hell workers
conspiring against him to effectuate the hell pledge; and that the
only way to invalidate his conviction and sentence is to “put hell”
on the conspirators by telling them, in a ritualistic way, to “go
to hell.” Dr. Childs testified that Patterson’s delusional beliefs
rendered him incapable of rationally understanding the proceedings
against him or consulting with his attorneys.
Dr. McNeel, the only mental health expert who examined
Patterson for competency to stand trial, testified at the state
12
habeas evidentiary hearing that Patterson was competent to stand
trial. He acknowledged that, hypothetically, a person suffering
the “hell pledge delusion” could be incompetent to stand trial; but
he testified that, even if Patterson currently suffered such a
delusion, he could not assume that Patterson suffered that delusion
at the time of his trial in 1993. Dr. McNeel’s evaluation of
Patterson in 1993 revealed that, although Patterson suffered some
delusions regarding implanted remote control devices, Patterson did
not connect those devices with the judicial process, but discussed
them only in the context of something that had happened in the
past.
Considering all of the evidence, the state habeas trial court
found that Patterson “is capable of communicating with his
attorneys,” that Patterson did not meet his burden of establishing
that he cannot do so with a rational degree of understanding, and
that Patterson “demonstrated during his trial ... the capability of
refraining from disruptive behavior when he chose to.” In its
conclusions of law, it simply stated: “Petitioner is competent.”
The magistrate judge and the district court stated, however, that,
if they were reviewing the issue de novo, they would have concluded
that Patterson was incompetent to stand trial. Nevertheless, they
held that Patterson had failed to rebut, with clear and convincing
evidence, the state competency jury’s factual determination that
Patterson was competent.
13
Based on our review of the record of the competency trial and
the state habeas hearing, we conclude that the competency jury and
the state habeas court did not unreasonably determine that
Patterson was competent to stand trial in 1993. Every psychiatric
expert who had contact with Patterson immediately prior to his
trial, including the two experts consulted by defense counsel,
concluded at that time that he was competent to stand trial.
Although Dr. Quijano’s testimony at the state habeas hearing
indicated retrospective doubts about Patterson’s competency to
stand trial, Dr. Quijano nevertheless testified that he believed
Patterson was competent to stand trial in 1993. Dr. Childs never
examined Patterson and did not observe Patterson’s demeanor in the
courtroom in 1993. His opinion was based on speculation --
speculation that Patterson suffered the hell pledges delusion in
1993. Dr. McNeel, the defense expert who examined Patterson in
1993, testified that Patterson gave no indication that he suffered
such a hell pledges delusion at that time. Our review of the
record supports that conclusion. Patterson’s outbursts and
testimony at the competency trial and the trial on the merits in
1993 do not contain any references to the hell pledges delusion
that had become apparent by the time of the state habeas
evidentiary hearing. Although Dr. McNeel did not testify at the
competency hearing, his opinion, it is fair to say, is the most
credible evidence on the question whether Patterson was competent
to stand trial in 1993. We reach this conclusion in substantial
14
part because he was the only mental health expert who was able to
examine Patterson.
In sum, we conclude that Patterson has not demonstrated that
the state courts’ adjudication of his claim that he was incompetent
to stand trial resulted in a decision that was based on an
unreasonable determination of the facts in the light of the
evidence presented in the state court proceedings or a decision
that was contrary to, or involved an unreasonable application of,
clearly established federal law. We thus affirm the district
court’s denial of habeas relief for this claim.
2
Ineffective Assistance of Counsel
Patterson argues that trial counsel rendered ineffective
assistance at all stages of his criminal trial: at the competency
hearing, at the guilt-innocence phase of his trial, and at the
punishment phase of his trial. The district court granted a COA
only with respect to the guilt-innocence phase and the punishment
phase. Accordingly, we cannot consider the competency hearing
claim unless we first grant a COA for that particular claim. See
28 U.S.C. § 2253(c)(1); Dowthitt v. Johnson, 230 F.3d 733, 739 (5th
Cir. 2000) (under AEDPA, petitioner must first obtain a COA in
order for appellate court to review district court’s denial of
habeas relief). We will address that claim later in this opinion,
along with Patterson’s other COA requests. We will now turn to
consider the claims related to the guilt and punishment phases of
15
his trial on which the district court granted a COA. We begin by
reviewing the applicable law.
To establish an ineffective assistance of counsel claim,
Patterson must show that his counsel’s performance was deficient
and that he was actually prejudiced by the deficient performance.
Strickland v. Washington, 466 U.S. 668, 687 (1984). Whether
counsel’s performance was deficient is determined by examining
whether the challenged representation fell below an objective
standard of reasonableness. Kitchens v. Johnson, 190 F.3d 698, 701
(5th Cir. 1999). We are mindful that our “scrutiny of counsel’s
performance must be highly deferential.” Strickland, 466 U.S. at
689. “[C]ounsel is strongly presumed to have rendered adequate
assistance and to have made all significant decisions in the
exercise of reasonable professional judgment.” Id. at 690.
Strickland makes clear that “strategic choices made after thorough
investigation of law and facts relevant to plausible options are
virtually unchallengeable.” Id. at 690-91; see also United States
v. Jones, 287 F.3d 325, 331 (5th Cir.) (“Informed strategic
decisions of counsel are given a heavy measure of deference and
should not be second guessed.”), cert. denied, 123 S.Ct. 549
(2002); Lockett v. Anderson, 230 F.3d 695, 714 (5th Cir. 2000)
(Strickland requires deference to counsel’s “informed strategic
choices”). “So long as counsel made an adequate investigation, any
strategic decisions made as a result of that investigation fall
within the wide range of objectively reasonable professional
16
assistance.” Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir. 2002)
(internal quotation marks and citation omitted).
“A conscious and informed decision on trial tactics and
strategy cannot be the basis for constitutionally ineffective
assistance of counsel unless it is so ill chosen that it permeates
the entire trial with obvious unfairness.” Jones, 287 F.3d at 331.
To overcome the deference given to informed strategic decisions,
Patterson must show that his counsel “blundered through trial,
attempted to put on an unsupported defense, abandoned a trial
tactic, failed to pursue a reasonable alternative course, or
surrendered his client.” Id.; see also Moore v. Johnson, 194 F.3d
586, 615 (5th Cir. 1999) (“Strickland does not require deference to
those decisions of counsel that, viewed in light of the facts known
at the time of the purported decision, do not serve any conceivable
strategic purpose.”).
Even if Patterson establishes that his counsel’s performance
was deficient, he must also establish that “prejudice caused by the
deficiency is such that there is a reasonable probability that the
result of the proceedings would have been different.” Ransom v.
Johnson, 126 F.3d 716, 721 (5th Cir. 1997). Patterson must show
that the prejudice rendered the outcome “fundamentally unfair or
unreliable.” Id. (quoting Lockhart v. Fretwell, 506 U.S. 364
(1993)).
Under AEDPA, we must give proper deference to the state
court’s determination that trial counsel did not render ineffective
17
assistance. See Ladd v. Cockrell, 311 F.3d 349, 351 (5th Cir.
2002). Because the state court properly identified Strickland as
the governing legal principle, the “unreasonable application” prong
of section 2254(d)(1) provides the standard which governs our
review of the state court’s decision regarding Patterson’s
ineffective counsel claims. Bell v. Cone, 122 S.Ct. 1843, 1850
(2002). In making the “unreasonable application” inquiry, we must
determine whether the state court’s application of Strickland was
objectively unreasonable. Id.; Neal v. Puckett, 286 F.3d 230, 236
(5th Cir. 2002) (en banc), cert. denied, 123 S.Ct. 963 (2003).
Under section 2254(d)(1), “[w]e have no authority to grant habeas
corpus relief simply because we conclude, in our independent
judgment, that a state supreme court’s application of Strickland is
erroneous or incorrect.” Catalan v. Cockrell, 315 F.3d 491, 493
(5th Cir. 2002) (quoting Neal, 286 F.3d at 236). “The federal-
habeas scheme leaves primary responsibility with the state courts
for these judgments, and authorizes federal-court intervention only
when a state court decision is objectively unreasonable.” Woodford
v. Visciotti, 123 S.Ct. 357, 361 (2002).
a
Failure to Fully Utilize Experts
Patterson argues that, at both phases of the trial, counsel
failed to utilize fully the services of a defense expert.
According to Patterson, such an expert was needed to assist with
cross-examination of Dr. Grigson at the guilt-innocence phase
18
regarding his testimony that Patterson was faking psychosis at the
time of the offense; to monitor Patterson’s mental state and to
alert counsel and the court if Patterson became incompetent during
the proceedings; to persuade the trial court to revisit the issue
of Patterson’s competence to stand trial; to facilitate
presentation of evidence at the punishment phase; and to urge the
jury to regard Patterson’s diminished mental capacity as a
mitigating circumstance.
The state habeas trial court found that trial counsel were
furnished adequate financial resources to consult experts regarding
Patterson’s mental competency; that the experts consulted by trial
counsel were qualified in their field; and that Dr. Cox, one of the
experts consulted by Patterson’s trial counsel, was available and
assisted during the trial. It concluded that Patterson had not
demonstrated that counsel made mistakes or omissions that fell
below an objective standard of reasonableness and that Patterson
was not denied the effective assistance of counsel.
Considering the respective arguments presented, we conclude
that Patterson has not rebutted the state habeas trial court’s
factual finding that Dr. Cox was available and assisted his counsel
during trial. In the light of that finding, the state court’s
conclusion that trial counsel did not render ineffective assistance
by failing to fully utilize the services of a defense expert is
neither contrary to, nor an unreasonable application of, federal
19
law. Accordingly, we affirm the district court’s denial of habeas
relief for this claim.
b
Guilt-Innocence Phase
Patterson argues that counsel rendered ineffective assistance
at the guilt-innocence phase of trial by failing to offer his
medical records in support of the insanity defense and by failing
to object to the prosecutor’s closing argument. We address each of
these claims separately.
(1)
Failure to Present Evidence in Support of Insanity Defense
Patterson relied on an insanity defense at the guilt-innocence
phase of trial. Patterson’s counsel presented the testimony of
Patterson’s brother and roommate regarding Patterson’s history of
mental illness, prior hospitalizations, and bizarre behavior
immediately prior to the murders. They also presented expert
testimony that Patterson suffered from paranoid schizophrenia, a
mental illness which can render a person unable to distinguish
between right and wrong. But Patterson says that counsel should
have done more: They should have offered his medical records in
support of the insanity defense. Those records showed a history of
violent acts, followed by determinations of incompetency to stand
trial, hospitalization and restored competency following the
administration of medication, and determinations that he was insane
at the time the offenses were committed.
20
At the state habeas evidentiary hearing, both of Patterson’s
trial counsel testified that there was a strategic reason for not
introducing the medical records: Those records would have revealed
to the jury that Patterson had escaped conviction for two prior
shootings. Counsel feared that the jury’s indignation at
Patterson’s previous, unpunished violent acts would overwhelm the
jury’s ability to consider the evidence of insanity objectively.
The state habeas court found that the strategic reasons proffered
by trial counsel were valid.
The district court acknowledged that Patterson’s medical
records would have been “highly relevant” on the issue of
Patterson’s sanity at the time of the murders. It concluded,
however, that trial counsel’s decision to try to meet their burden
through testimony about Patterson’s generally bizarre behavior,
without introducing prejudicial evidence of Patterson’s prior
criminal conduct or hospitalizations, did not fall outside the wide
range of constitutionally acceptable assistance.
Patterson contends that the medical records would have
supported his insanity defense. He argues that trial counsel’s
proffered strategic reason for not introducing the records is
evidence of ineffective assistance of counsel, because an attorney
should not assume that a jury will ignore the law because it is
prejudiced by the facts.
We conclude that the state court’s decision that counsel did
not render ineffective assistance at the guilt-innocence phase by
21
failing to present Patterson’s medical records is neither contrary
to, nor an unreasonable application of, federal law. Trial counsel
had valid strategic reasons for not presenting the medical records
-- counsel did not want to portray Patterson to the jury as a
dangerous person who had twice escaped conviction for violent
assaults. We therefore affirm the district court’s denial of
habeas relief for this claim.
(2)
Failure to Object to Prosecutor’s Closing Argument
Patterson argues that trial counsel also rendered ineffective
assistance at the guilt-innocence phase by failing to object to the
prosecutor’s closing argument. Patterson characterizes the
prosecutor’s argument as an invitation to the jury to nullify the
law of insanity, to set its own standard, and to hold Patterson
accountable for refusing to take his medication. The state habeas
court found that Patterson failed to meet his burden of showing
that trial counsel made omissions which fell below an objective
standard of reasonableness.
The district court construed the prosecutor’s argument as
urging the jury not to believe Patterson’s claim that he did not
know right from wrong because he did not take his medication. The
district court stated that, in any event, it was unclear whether
voluntarily failing to take anti-psychotic medication provides a
valid legal ground for a jury’s rejecting an insanity defense. It
therefore held that, considering the unsettled state of the law and
22
the context in which the remarks were made, the prosecutor’s
argument was not improper and counsel did not render deficient
performance by failing to object.
The state court’s decision that counsel did not render
ineffective assistance by failing to object to the prosecutor’s
closing argument is neither contrary to, nor an unreasonable
application of, federal law. Even assuming that the failure to
object constitutes deficient performance, Patterson has not
demonstrated prejudice -- he has not shown that there is a
reasonable probability that the trial court would have sustained
such an objection had it been made or that, had it been sustained,
that there is a reasonable probability that the jury would have
found him not guilty by reason of insanity. We therefore affirm
the district court’s denial of habeas relief for this claim.
c
Punishment Phase
Patterson argues that counsel rendered ineffective assistance
at the punishment phase by failing to introduce his medical
records, bolstered by expert testimony. This evidence, he argues,
would have supported the argument that he would not constitute a
future danger to society if institutionalized and forcibly
medicated. Such evidence also would have supported the argument
for diminished capacity as a mitigating circumstance. In order to
give some context to our consideration of this claim, we will first
describe the evidence presented at the punishment phase.
23
The State presented the testimony of the victims Patterson
shot in 1980 and 1983. Both of them testified that they did
nothing to provoke the attacks. Both of them were aware that
Patterson was not convicted for the shootings, and one of them
testified that he was aware that Patterson had been found mentally
incompetent. Three law enforcement officers testified that
Patterson’s reputation in the community for being peaceful and law-
abiding was bad.
Patterson’s counsel presented the testimony of Patterson’s
brother and sister regarding Patterson’s history of mental illness.
Both testified that they believed Patterson would benefit from
psychiatric care because he had benefitted from such care in the
past. Patterson’s brother, a correctional officer for the Texas
Department of Criminal Justice (“TDCJ”), also testified that TDCJ
had programs and facilities for mentally ill inmates with staff
psychiatrists and psychologists who could administer medication and
treatment.
The jury was instructed that a prisoner serving a life
sentence for a capital felony is not eligible for parole until the
prisoner has served 35 years. In closing argument, Patterson’s
counsel observed that, if Patterson were sentenced to life
imprisonment, he would be 74 years old before he could even be
considered for parole. Counsel continued: “We’re talking about
him going to die or spend basically the rest of his life in the
penitentiary where he can be forced to take medication, where he
24
can be watched 24 hours a day, where he will be behind bars for the
rest of his life.” Patterson argues that his medical records
establish that he is not violent when forcibly medicated in an
institutionalized setting, and that expert testimony was available
to show that the Texas prison system has procedures for forcibly
medicating dangerous, mentally ill inmates. Although the medical
records show some additional instances of violent behavior by
Patterson while institutionalized, Patterson argues that, because
those incidents occurred relatively early in the hospitalizations,
the medical records would have supported an argument by counsel
that he is not violent once he is placed on anti-psychotic
medication and that medication has had time to take effect.
With respect to diminished capacity, Patterson argues that the
medical records show that, even after his medication took effect
and he was no longer violent, he never gained any insight into the
need to continue taking the medication in order to avoid future
psychosis. He thus contends that, had his trial counsel admitted
the records, they could have argued convincingly that his conduct
was a result of his diminished capacity because of his illness.
Furthermore, Dr. Quijano would have been willing to testify that
Patterson would have had substantial difficulty conforming his
conduct to the law because of his paranoid schizophrenia.
Patterson argues that such evidence of diminished capacity would
have provided a basis for the jury to assess a sentence less than
death.
25
The State counters that counsel had valid strategic reasons
for not presenting the medical records, because they contained
accounts of additional instances of violent conduct by Patterson
during his prior hospitalizations. According to the State, these
additional instances of violent conduct could seriously have
undermined counsel’s argument that the State had failed to prove
that Patterson would present a future danger to society if
incarcerated.
We begin our analysis of these particular claims of
ineffective counsel by observing that Patterson’s trial counsel
were faced with a formidable task in defending Patterson: He did
not want them to represent him; the evidence of his guilt was
overwhelming; he refused to heed their advice; and he refused to
cooperate with mental health experts who tried to evaluate him.
The testimony of Patterson’s trial counsel at the state habeas
evidentiary hearing reflects that they made an informed strategic
decision to forego the use of Patterson’s medical records and
expert testimony in support of an argument that Patterson’s
diminished capacity was a mitigating circumstance. Patterson’s
counsel testified that they explored the possibility of presenting
the testimony of Dr. McNeel or Dr. Cox at the punishment phase of
trial, but decided that it would be more harmful than beneficial.
According to counsel, Dr. McNeel believed that Patterson was just
mean-spirited and that his behavior was not attributable to his
mental illness. It is true that Dr. Cox believed there was some
26
level of impairment due to Patterson’s mental illness; but counsel
believed that Dr. Cox’s less than fully supportive testimony would
have minimized the impact of the stronger evidence of Patterson’s
mental illness presented through family members and acquaintances.
Counsel testified that they were concerned that introduction of the
medical records for mitigation would inform the jury of the
ineffectiveness of Patterson’s treatment after the prior shooting
episodes and would present to the jury a harmful pattern of
Patterson’s committing violent acts, being hospitalized, and then
committing other violent acts after he was released.
Furthermore, with respect to the future dangerousness issue,
counsel’s decision not to use the penitentiary medical records, and
evidence regarding forcible medication procedures at the
penitentiary, was also an informed strategic decision requiring
deference under Strickland. The testimony of both of Patterson’s
defense lawyers at the state habeas evidentiary hearing indicates
that they were familiar with the contents of Patterson’s medical
records and, based upon their review of the medical records, they
consciously decided not to use the medical records during the
punishment phase. Counsel testified that the defense theory at the
punishment phase was to portray Patterson as a mentally ill person
who did not need to be put to death, but should instead be put in
prison where he could get some help. Counsel acknowledged that
they were aware that Patterson’s medical records showed that his
condition improved when he was on medication. Counsel believed,
27
however, that the medical records contained some damaging
information that would have emphasized that treatment had been
ineffective for Patterson in the past. Counsel testified further
that they were aware that Patterson could be forcibly medicated in
prison, and that they could have called Dr. Quijano or other people
from the penitentiary to testify on that issue. When asked,
however, whether they attempted to convince the jury that Patterson
would not be dangerous to others in the penitentiary if confined on
a life sentence, one of Patterson’s lawyers responded that he was
not sure how he could have done that. Counsel acknowledged that he
did not present any direct evidence that Patterson’s violent and
aggressive behavior could be controlled through the administration
of antipsychotic medication, or that such medication could be
administered forcibly if Patterson were serving a life sentence in
the penitentiary. Nevertheless, counsel presented the testimony of
Patterson’s brother, a state correctional officer, that within the
prison system there are programs for mentally ill inmates with
psychiatrists and psychologists available. Furthermore,
Patterson’s brother and sister both testified that his condition
improved when he was on medication.
Counsel explained that they feared that the introduction of
Patterson’s medical records would have opened the door for the
prosecutor to argue that the treatment Patterson had received in
the past had not prevented subsequent acts of violence and thus
would have lessened their ability successfully to argue for
28
institutionalization rather than the death penalty. Counsel
testified that they decided instead to rely on the State’s failure
to present evidence that Patterson did not do well in an
institutionalized environment.
As we have earlier noted, counsel’s decision not to introduce
Patterson’s medical records at the guilt-innocence phase was a
reasonable strategic decision, because those records would have
informed the jury of Patterson’s prior violent assaults that were
the basis for two of his previous hospitalizations. Patterson
argues that the same does not hold true for the punishment phase,
because, by the time the defense presented its case at the
punishment phase, the State had already presented the testimony of
the victims of those prior assaults. Both of the victims testified
that Patterson was not convicted for shooting them, and one of them
testified that he was aware that Patterson had been found mentally
incompetent. Patterson thus contends that, because the jury
already was aware that he had escaped punishment for the two prior
shootings, the jury reasonably could have inferred that any prior
treatment he had received for his mental illness had not prevented
the murders for which they were to assess punishment.
Applying AEDPA’s deferential standard, we conclude that the
state court did not apply Strickland unreasonably when it found
that trial counsel justifiably believed that introduction of the
medical records at the punishment phase would have negated the
effectiveness of their argument that confinement rather than the
29
death penalty could have served the public interest in avoiding
further violence by Patterson. A trial counsel’s reasoned decision
not to introduce evidence, containing both helpful and damaging
information, cannot be deficient performance. Duff-Smith v.
Collins, 973 F.2d 1175, 1183 (5th Cir. 1992); see also Johnson v.
Cockrell, 306 F.3d 249, 253 (5th Cir. 2002) (failure to introduce
double-edged evidence, so long as part of an informed trial
strategy, cannot constitute deficient performance); Foster v.
Johnson, 293 F.3d 766, 778-79 (5th Cir.), cert. denied, 123 S.Ct.
625 (2002). We therefore affirm the district court’s denial of
habeas relief on Patterson’s claim that he received ineffective
assistance of counsel at the punishment phase.
B
COA Issues
Patterson seeks a COA on three claims: first, that the state
trial court denied him due process by failing to conduct a mid-
trial competency hearing; second, that he is presently incompetent
to be executed; and finally, because the district court’s grant of
COA on the ineffective assistance of counsel claims was limited to
the guilt-innocence and punishment phases of trial, we construe his
argument that he received ineffective assistance of counsel at the
competency trial as a request for a COA.
“[U]ntil a COA has been issued federal courts of appeals lack
jurisdiction to rule on the merits of appeals from habeas
petitioners.” Miller-El v. Cockrell, 123 S.Ct. 1029, 1039 (2003).
30
To obtain a COA, Patterson must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-
El, 123 S.Ct. at 1039; Slack v. McDaniel, 529 U.S. 473, 483 (2000).
To make such a showing, he must demonstrate that “reasonable
jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that
the issues presented were adequate to deserve encouragement to
proceed further.” Miller-El, 123 S.Ct. at 1039 (quoting Slack, 529
U.S. at 484). Because the district court denied relief on the
merits of the claims for which Patterson seeks a COA, he “must
demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.”
Slack, 529 U.S. at 484.
In Miller-El, the Supreme Court instructed, as it had
previously held in Slack, that we should “limit [our] examination
to a threshold inquiry into the underlying merit of [the
petitioner’s] claims.” Miller-El, 123 S.Ct. at 1034. The Court
observed that “a COA ruling is not the occasion for a ruling on the
merit of petitioner’s claim....” Id. at 1036. Instead, our
determination must be based on “an overview of the claims in the
habeas petition and a general assessment of their merits.” Id. at
1039. “This threshold inquiry does not require full consideration
of the factual or legal bases adduced in support of the claims.”
Id. We do not have jurisdiction to justify our denial of a COA
based on an adjudication of the actual merits of the claims. Id.
31
Accordingly, we cannot deny an “application for a COA merely
because [we believe] the applicant will not demonstrate an
entitlement to relief.” Id. “[A] claim can be debatable even
though every jurist of reason might agree, after the COA has been
granted and the case has received full consideration, that
petitioner will not prevail.” Id.
Thus, we reiterate that our task is to determine whether
Patterson has demonstrated “that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable
or wrong.” Slack, 529 U.S. at 484.
1
Ineffective Assistance of Counsel at Competency Hearing
Patterson requests a COA for his claim that at the competency
hearing counsel rendered deficient performance by: first, failing
adequately to prepare the defense expert, Dr. McNeel; second,
failing personally to testify as to Patterson’s incompetency;
third, failing to present evidence of his prior hospitalizations;
fourth, failing to present the testimony of an attorney who had
previously represented him; and, finally, failing to discover that
Dr. Quijano’s competency determination was based on his erroneous
assumption that Patterson bore the burden of proving his
incompetency.
a
Inadequate Preparation of Expert
32
Patterson argues that counsel did not adequately prepare Dr.
McNeel to give a fully informed opinion on his competency to stand
trial, because they: (1) failed to provide Dr. McNeel with
Patterson’s Terrell Hospital records, in which it was first
documented that Patterson’s denials of auditory hallucinations were
false; (2) did not supply to Dr. McNeel any information from
Patterson’s family and friends regarding his past patterns of
psychosis, his hallucinatory behavior in the days before the
murders, and the fact that Patterson was hallucinatory while
awaiting trial; and (3) did not educate Dr. McNeel about the extent
and nature of Patterson’s fixed delusional system. To support
these claims, Patterson relies on Dr. McNeel’s testimony at the
state habeas evidentiary hearing. In response to a hypothetical
question, Dr. McNeel testified that, if Patterson’s delusional
system included a belief that the judge, lawyers, and jury were all
part of the hell pledges against him, he would have had to question
Patterson’s ability to assist his counsel and thus would have felt
Patterson was most likely not competent to stand trial. Patterson
argues that this response at the habeas hearing shows that, had Dr.
McNeel been properly prepared at the competency hearing, he likely
would have concluded that Patterson was incompetent to stand trial.
Patterson has not made a substantial showing of the denial of
a constitutional right and thus is not entitled to a COA for this
claim. Even assuming that reasonable jurists would find it
debatable whether counsel inadequately prepared Dr. McNeel, they
33
would not find it debatable whether Patterson was prejudiced. Dr.
McNeel testified at the state habeas hearing that nothing that had
been revealed during the state habeas proceedings undermined his
determination that Patterson was competent to stand trial in 1993.
Patterson’s reliance on Dr. McNeel’s response to the hypothetical
question is unavailing, because there is no evidence -- only
speculation -- that, at the time of his trial in 1993, Patterson
suffered from the hell pledges delusion, or that he had
incorporated the jury, judge, and his lawyers into his delusional
system.
b
Failure to Present Evidence
Patterson next argues that counsel performed deficiently by:
failing personally to testify at the competency hearing as to their
difficulties in communicating with him; failing to present to the
competency jury his medical records showing a long history of
incompetence; failing to present the testimony of a lawyer who had
represented him previously; and failing to interview Dr. Quijano to
learn that his conclusion that Patterson was competent was based on
the faulty legal assumption that Patterson was competent to stand
trial until an examination could prove otherwise. He contends
further that counsel’s decision not to introduce the medical
records was not an informed decision, because counsel had not
talked to Patterson’s family and were thus unaware that Patterson
was hallucinating while in jail awaiting trial. Patterson argues
34
that the medical records, which show a pattern of incompetency and
a restoration of competency only after forcible medication, could
have been used to argue that, in the light of Patterson’s not
taking medication prior to trial, his refusal to cooperate with his
attorneys was the product of his mental illness rather than
obstinacy or malingering.
Patterson has not made the showing required for a COA on this
claim. Jurists of reason would not find it debatable whether
counsel’s performance was deficient, or whether Patterson was
prejudiced. The district court concluded that testimony from
Patterson’s trial counsel at the competency hearing would have had
only marginal value because counsel could not say for certain
whether they thought Patterson was incompetent or simply obstinate.
Trial counsel testified that they did not introduce Patterson’s
medical records at the competency hearing because they feared the
jury would have been too frightened by Patterson’s prior history of
delusional violence to focus on the issue of his mental capacity;
and they abandoned the idea of calling Patterson’s former attorney,
Henderson, as a witness because he had described Patterson as “one
mean S.O.B.” and because it could have opened the door to evidence
regarding the underlying violent crime leading to Henderson’s
representation of Patterson. Counsel’s failure to interview Dr.
Quijano is not surprising inasmuch as Dr. Quijano was an expert
witness for the State. In any event, Dr. Quijano testified at
trial and at the state habeas evidentiary hearing that he believed
35
Patterson was competent to stand trial. We also note that counsel
elicited information about Patterson’s psychiatric history during
cross-examination of the State’s experts, including the fact that
Patterson had been found incompetent to stand trial on two previous
occasions.
In sum, the district court’s assessment of Patterson’s claim
that he received ineffective assistance of counsel at the
competency trial is neither debatable nor wrong. We therefore deny
a COA for this claim.
2
Failure to Conduct Mid-Trial Competency Hearing
Patterson also seeks a COA for his claim that the state trial
court denied him due process by failing to halt the trial long
enough to revisit the issue of his competency to stand trial.
A trial judge must conduct an inquiry into a criminal
defendant’s competency to stand trial whenever the trial judge
receives information which, objectively considered, “should have
raised a doubt about the defendant’s competency and alerted him to
the possibility that the defendant could neither understand the
proceedings or appreciate their significance, nor rationally aid
his attorney in his defense.” Lokos v. Capps, 625 F.2d 1258, 1261
(5th Cir. 1980). “If the trial court receives evidence, viewed
objectively, that should raise a reasonable doubt as to competency,
yet fails to make further inquiry, this constitutes a denial of a
36
fair trial.” Carter v. Johnson, 131 F.3d 452, 459 n.10 (5th Cir.
1997).
The state trial court conducted a jury trial on the issue of
Patterson’s competency to stand trial on May 3 and 4, 1993, less
than two months prior to his capital murder trial. In order to
show that the trial court abused its discretion in failing to
conduct a second, mid-trial competency hearing, Patterson must
identify facts known to the trial court at that time that would
have suggested that Patterson’s mental status had deteriorated to
the point that the jury’s prior finding of competency was no longer
valid. See Drope v. Missouri, 420 U.S. 162, 181 (1975) (“Even when
a defendant is competent at the commencement of his trial, a trial
court must always be alert to circumstances suggesting a change
that would render the accused unable to meet the standards of
competence to stand trial.”); Reynolds v. Norris, 86 F.3d 796, 801
(8th Cir. 1996) (“habeas petitioner has the burden to prove that
objective facts known to the trial court raised a sufficient doubt
to require a [mid-trial] competency hearing”).
Patterson relies on the fact that he made frequent outbursts
during the course of the trial that resulted in his removal from
the courtroom. He also points out that the state trial court was
aware of additional evidence of his incompetency that was not
available to the competency jury: his testimony at the competency
trial, which the competency jury was instructed to disregard, and
his refusal to accept the State’s offer of a life sentence in
37
exchange for a plea of guilty. Patterson argues that his inability
to refrain from verbal outbursts during voir dire, his delusional
insistence that his court-appointed counsel did not represent him,
and his refusal to plead guilty should have alerted the trial court
to the substantial possibility that Patterson was not competent to
stand trial.
The state habeas trial court found that Patterson’s behavior
during the trial was not different from his behavior at the
competency hearing less than two months earlier. The record
supports that finding. The district court held that the state
court’s decision was neither contrary to, nor involved an
unreasonable application of, clearly established federal law. We
conclude that the district court’s assessment of this claim is
neither debatable nor wrong. Because Patterson’s behavior at trial
was consistent with his behavior at the competency hearing
conducted less than two months earlier, reasonable jurists would
not find it debatable whether Patterson’s condition had
deteriorated to the point that a renewed inquiry into competency
was required. We therefore deny a COA for this claim.
3
Incompetency to be Executed
Finally, Patterson requests a COA for his claim that he is
presently incompetent to be executed. The Supreme Court has held
that “the Eighth Amendment prohibits a State from carrying out a
sentence of death upon a prisoner who is insane.” Ford v.
38
Wainwright, 477 U.S. 399, 409-10 (1986). To be competent to be
executed, a death row inmate must “know the fact of [his] impending
execution and the reason for it.” Id. at 422 (Powell, J.,
concurring). “If the defendant perceives the connection between
his crime and his punishment, the retributive goal of the criminal
law is satisfied, and only if the defendant is aware that his death
is approaching can he prepare himself for his passing.” Id.
When Patterson filed his state habeas application in May 1997,
that was the only mechanism available under Texas law to raise the
issue of his competency to be executed. Accordingly, although an
execution date had not been set at that time, Patterson raised the
issue in his state habeas application. At the state habeas
hearing, Patterson acknowledged that he had been convicted of
killing Louis Oates and Dorothy Harris and that the State intends
to execute him by lethal injection for that offense. The state
habeas trial court found that Patterson’s mental illness “does not
prevent [him] from knowing and realizing that he is under a death
sentence for actions he took in taking the lives of his victims,”
and concluded that “Petitioner is competent.”
Patterson’s federal habeas petition also claimed that he was
presently incompetent to be executed. At the time Patterson filed
his federal habeas petition, an execution date had been set, but
the district court entered a stay of execution for the duration of
the federal habeas proceedings. The magistrate judge appointed a
psychiatric expert, Dr. Gripon, to evaluate Patterson, and
39
authorized funds for Patterson’s counsel to retain an expert, Dr.
Rogers. Patterson refused to submit to an evaluation by either
expert. Both experts testified at the May 1999 federal evidentiary
hearing that they could not determine definitively Patterson’s
present competency to be executed, but that there was no indication
that Patterson’s mental condition had changed since the state
habeas evidentiary hearing. Both experts agreed that Patterson’s
refusal to cooperate in an evaluation was itself a product of his
mental illness.
The magistrate judge continued the hearing until August so
that Patterson could be transferred to a prison psychiatric
facility. Following his transfer, Patterson continued to refuse to
cooperate with the experts. When they attempted to interview him,
he told them that he had received a permanent stay of execution,
which they were endangering by attempting to interview him.
At the August 1999 federal evidentiary hearing, Patterson
stated that he had received a permanent stay of execution. His
counsel presented other evidence of his belief that he had received
such a stay, including a letter in which Patterson stated that he
had received a “full pardon.” Dr. Rogers testified that, given
Patterson’s elaborate delusional system, it is “certainly possible”
that he believes he is going to be executed because of the
implants, hell pledges and conspiracies against him, and not
because he committed the murders. Without being able to conduct a
full evaluation, neither expert could say what Patterson meant by
40
his reference to a “permanent” stay of execution, or whether it was
a manifestation of his delusional system.
The district court rejected Patterson’s argument that his
delusional understanding of how he came to be on death row prevents
him from making the connection between his conduct and his
punishment. The court concluded that Patterson’s belief that he
has received a pardon or a “permanent” stay of execution is merely
a mistake of fact about the duration of the stay granted by the
district court and is insufficient to defeat the presumption that
Patterson is competent to be executed. The district court rejected
Patterson’s claim that, because his mental illness prevented the
experts from evaluating his current competency, he cannot be
executed so long as there are additional means available to
ascertain his competency. The district court feared that delaying
execution for indefinite, long-term observation in cases where a
petitioner refuses to cooperate with a competency examination would
invite death row inmates to engage in such tactics in order to
delay or prevent their execution.
Patterson argues that he is incompetent to be executed because
he cannot make a rational connection between his crime and his
execution and, therefore, the retributive goal of criminal law will
not be satisfied by executing him. He asserts that his belief that
he has been pardoned for innocence demonstrates that he lacks a
factual understanding that he is to be executed, and that his
belief cannot possibly be explained as a misapprehension of the
41
source and duration of the district court’s stay of execution.
Patterson contends that the district court erred by denying his
motion to require the State, as a condition of executing him, first
to transfer him to a state mental health facility for a period of
observation. He also asserts that the district court ignored the
fact that neither of the experts who tried to examine him believed
that he was malingering, as well as the fact that both of the
experts testified that his refusal to cooperate in an evaluation
was itself a product of his mental illness. Patterson concludes
that, under these circumstances, where there is a viable chance
that he is incompetent to be executed, but the same delusional
system that makes him incompetent also prevents his habeas counsel
from proving it, it is intolerable under the Eighth Amendment to
allow the State to execute him.
On the other hand, the State counters that Patterson has
failed to rebut, by clear and convincing evidence, the
presumptively correct finding of the state courts that he is
competent to be executed. The State asserts that there is no
evidence that Patterson’s mental status has changed, much less
deteriorated to the point that the state courts’ assessment of his
competency in 1998 is no longer valid. To the extent that new
evidence has surfaced regarding Patterson’s understanding of
whether he is going to be executed, the State asserts that a
mechanism in Texas law exists for the consideration of such
evidence in the context of an impending execution, TEX. CODE CRIM.
42
PROC. ANN. art. 46.05 (effective September 1, 1999), and the federal
courts should defer to that process, allowing the state courts to
consider that new evidence after an execution date has been
scheduled. Finally, the State contends that, even assuming that
Patterson’s refusal to submit to an evaluation is a product of his
mental illness and that a definitive conclusion on his current
competency cannot be reached without such an evaluation, a federal
habeas court does not have the power to order that Patterson be
transferred to a non-correctional mental health facility.
Based on the evidence presented at the federal habeas
evidentiary hearings, we conclude that reasonable jurists would
find debatable Patterson’s competency to be executed. Accordingly,
we grant his request for a COA for this claim.
At the time of the state habeas evidentiary hearing, Patterson
was competent to be executed: He knew that he was going to be
executed and the reason for it. See Barnard v. Collins, 13 F.3d
871, 876-77 (5th Cir. 1994) (petitioner was competent to be
executed even though his perception of the reason for his
conviction and pending execution was distorted by a delusional
system in which he attributed anything negative that happened to
him to a conspiracy of Asians, Jews, Blacks, homosexuals, and the
Mafia); Garrett v. Collins, 951 F.2d 57, 59 (5th Cir. 1992)
(petitioner who believed dead aunt would protect him from poisons
and toxins in lethal injection was competent to be executed).
43
By the time of the federal habeas evidentiary hearing,
Patterson’s delusions had evolved to the point that he apparently
believed that he had received a “permanent” stay of execution and
a “pardon for innocence.” His letters indicate that he had, by
that time, incorporated the district judge and his federal habeas
counsel into his delusional system, believing them to be “hell
workers.” Because of Patterson’s refusal to cooperate in an
evaluation, which refusal both experts testified was a product of
his mental illness, neither expert could say what Patterson meant
by a “permanent” stay of execution. Patterson’s statement that he
had been “pardoned for innocence” raises serious questions about
his understanding, at that time, of the fact that he is going to be
executed.
The state courts have not had an opportunity to consider the
evidence of Patterson’s competency that was presented at the
federal habeas evidentiary hearings in 1999. Moreover, it has been
more than three years since those hearings were conducted.
Patterson’s execution was stayed by the district court, and no new
execution date has been set. Under these circumstances, the state
courts should be given the opportunity to evaluate Patterson’s
competency to be executed, in the light of the evidence presented
at the federal evidentiary hearings, as well as any evidence of his
condition in the intervening three years, when his execution is
imminent. We therefore dismiss this claim, without prejudice. See
Stewart v. Martinez-Villareal, 523 U.S. 637, 644-45 (1998) (Ford
44
claim raised for second time in subsequent federal habeas petition,
when it is ripe because the execution is imminent, is not “second
or successive” within the meaning of 28 U.S.C. § 2244 when claim
raised in first federal habeas petition was dismissed without
prejudice as unripe); Swann v. Taylor, 173 F.3d 425, 1999 WL 92435,
at *17 (4th Cir. 1999) (dismissing without prejudice competency to
be executed claim raised in first federal habeas petition because
execution was not imminent).
III
For the foregoing reasons, we AFFIRM the denial of habeas
relief on Patterson’s claims that he was incompetent to stand trial
and that he received ineffective assistance of counsel at the
guilt-innocence and punishment phases of trial; DENY a COA for
Patterson’s claims that counsel rendered ineffective assistance of
counsel at the competency trial and for his claim that he was
denied due process when the trial court failed to conduct a mid-
trial competency hearing; and GRANT a COA for Patterson’s claim
that he is presently incompetent to be executed, but DISMISS that
claim, without prejudice.
AFFIRMED in part, and DISMISSED, in part; COA DENIED in part,
and GRANTED in part.
45